Small But Steady Downward Trend In U.S. Executions

Here's a little-noticed fact about the death penalty. We've heard a big debate about how to execute people - lethal injection, electric chair, firing squad. That debate obscures a little-noticed fact - the number of people executed by any method is way down in the United States in recent years. NPR justice correspondent Carrie Johnson has been covering this story. She's in our studios. Hi, Carrie.

CARRIE JOHNSON, BYLINE: Hi, Steve.

INSKEEP: How far down?

JOHNSON: So there were 39 executions across the country last year - down from a peak of about 98 executions back in 1999. There's been a slow but steady downward trend.

INSKEEP: So what's driving that?

JOHNSON: So, a few things. One is the more readily available ability of juries to sentence people to life in prison without parole which had not been an option in some states for a long time. The second is increasing claims of innocence by people who have been on death row and the work of The Innocence Project and public defenders across the country.

INSKEEP: Now there's using DNA evidence and that sort of thing.

JOHNSON: Absolutely and also increasing questions about the unreliability of witness testimony. Finally, problems increasingly with lethal injection. Over the last few years there's been a shortage of one of the key drugs used in the three drug protocol that many states and the federal government have used. It's the first drug in that protocol - sodium thiopental - and it helps render people unconscious. But European countries have been reluctant to send the drug to the U.S. because they don't want it to be used in executions. U.S. government and states have a hard time finding a substitute for that drug, too.

INSKEEP: So it is not just cases like this recent one in Oklahoma in which there appears to have been a botched execution. It is a broader concern about the death penalty itself that's driving this.

JOHNSON: In some cases. Although, Steve, states have been turning to other drugs. And there are big questions about that too - whether some of these drugs are approved by the FDA, what drugs states are using exactly. There's been a lot of litigation over this, although courts have been kind of reluctant to order states to raise a curtain on their execution protocols, specifically where they're getting some of these medications.

INSKEEP: OK so granting we're talking about a smaller number of executions, generally speaking, in recent years. With the executions that go forward how serious are some states about restoring methods other than lethal injection, such as firing squads or the electric chair?

JOHNSON: So Tennessee is contemplating using the electric chair exclusively, given the problems with the lethal injection drug availability. And about a half-dozen other states give inmates a choice, which includes the electric chair. Now Steve, in Wyoming, state lawmakers are actually considering a return to the firing squad. And that's kind of unusual because according to a recent book on botched executions by an author named Austin Sarat, the methods over generations have progressed toward a more medicalized procedure away from gas chambers, a hanging, and fire squads and the like. And now we're talking about going back in that direction.

INSKEEP: Wait a minute, you're telling me that discomfort with things like the electric chair is what led us to lethal injection in the first place.

JOHNSON: Yeah but it's worth noting that the medical profession has expressed some real disappointment and concern about the use of its professionals in lethal injection. Both the American Medical Association and the American Nursing Association have denounced the participation of doctors and nurses in these executions.

INSKEEP: It sounds like what you're telling us, Carrie Johnson, is that this decline in the number of executions in the United States isn't driven by any particular change in the law. It's driven by social pressures people - who are just uncomfortable in many different ways with the death penalty.

JOHNSON: Well, to be sure, there are social pressures both from the medical profession and from the legal profession. But the state of the law has not changed much, Steve. The overlying issue here is the 8th Amendment which prohibits cruel and unusual punishment. And also, a more recent precedent from the Supreme Court back in 2008, the court upheld the three drug protocol for lethal injection. So the question now - in the courts and in states all over the country - is when you fiddle with that three drug protocol, how far away do you need to get from that in order to raise a legal cloud again?